Will they or won’t they? The multi-year saga over sports betting in the state of Florida throws the question open for each side.
For the West Flagler Associates pari-mutuel, it could file yet another step to keep their hopes alive of getting a piece of the betting pie by seeking to get the U.S. Supreme Court involved.
That possibility evolved after the U.S. Court of Appeals for the District of Columbia September 11 rejected a new hearing before all the judges, a longshot. Getting heard by the Supreme Court is also a long shot, but the high court opened the floodgates that unleashed sports betting around the country.
The crux of the issue lies in whether the Department of Interior (DOI) was correct in approving the compact, which gives the Seminole Tribe a monopoly.
On the Seminole side, will they prepare to go into the business of sports betting as early as September 19, and shut down again if West Flagler wins the next round? Or do they wait until all avenues are exhausted and then jump in? Why September 19?
According to the appellate court rules, the decision becomes final on the eighth day after it is handed down, hence the 19th. The tribe launched wagering in late 2021 for 34 days until Flagler won a round in court and shut it down.
For Flagler, the issue comes down to whether bettors can place wagers on land outside of the tribal facilities. They say no, thus negating the state approved compact.
The Seminoles say their hub-and-spoke solution, in which the server used to accept bets is located on tribal land, checks all the necessary boxes. So far the tribal design has survived all legal avenues.
“I will be surprised if this is the last that we have seen of this case, but this avenue’s path seems to have hit a roadblock, if not a dead end,” gaming consultant Brendan Bussmann, a principal at Las Vegas-based B Global, told Sports Handle. “West Flagler has other options, but I do see a path forward where Hard Rock may starting taking wagers until told otherwise.”
Should they pursue it, they even have a state card to play which would ask for a stay to block the tribe from launching sports betting based on Amendment 3, which requires that any expansion of gambling be put before voters.
“While it certainly was faster than I expected, I said all along that the D.C. Circuit would deny WFA’s petition,” Bob Jarvis, a constitutional law professor at NOVA Southeastern who has been following the case, told Sports Handle. “There really was no merit to WFA’s request, and in any event, WFA was facing very long odds given how rarely petitions for rehearing en banc are granted.
“I certainly expect WFA to now file a petition for certiorari with the U.S. Supreme Court. It, too, will be denied, likely by the end of this year,” Jarvis predicted.
The only business that West Flagler could have with the D.C. Circuit now is to ask for an effective stay of the mandate while it petitions the Supreme Court for a review. It’s unclear whether the D.C. Circuit would go along. The impact of that is clearer, however, if it does occur.
There is no promise the Supreme Court will take up the case if asked. But there are certain elements that might appeal to the court.
For example, the interpretation of the Indian Gaming Regulatory Act (IGRA) when it comes to online gambling governed by a compact is something that the Supreme Court could help clarify. A pertinent legal question is whether online gambling via servers on tribal lands is considered as taking place on those lands even if the people placing the wagers are elsewhere.
At the same time, the Supreme Court has historically been more likely to take up appeals when there are appellate court splits on a matter. The central issue of West Flagler’s case, that the DOI erred when it approved the compact between Florida and the Seminole Tribe, doesn’t have that.
A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia in June reversed a November 2021 decision by a federal judge who halted the gambling agreement.
Governor Ron DeSantis and Seminole Tribe Chairman Marcellus Osceola first inked the 30-year gambling deal that included giving the tribe control of sports betting back in 2021. After the deal was ratified by the Legislature, the Magic City and Bonita Springs pari-mutuel owners filed a lawsuit alleging the sports betting plan violated federal law and would cause a “significant and potentially devastating impact” on their operations.
In November 2021, U.S. District Judge Dabney Friedrich ruled that the plan ran afoul of IGRA, which regulates gambling on tribal lands, because the deal would allow gambling off property owned by the Seminoles.
Along with giving the Seminoles control over online sports betting, the compact allowed the tribe to offer craps and roulette at its casinos. Also, the deal would allow the Seminoles to add three casinos on tribal property in Broward County. Just to rub it in.
In exchange, the tribe pledged to pay the state a minimum of $2.5 billion over the first five years and possibly billions of dollars more throughout the three-decade pact.
Daniel Wallach, an attorney who specializes in gambling law, said the ruling in the Florida compact challenge “checks at least three of the boxes indicative” of a Supreme Court review. The decision is “in conflict” with rulings from other federal appellate courts, is “arguably in conflict with the Supreme Court’s own precedent,” and it involves an “important question of federal law that has not been, but should be settled,” by the Supreme Court.
The ruling in the Florida case “is in conflict with at least eight federal appeals court decisions from other circuits” in declaring that IGRA “has no application to off-reservation tribal gaming activities,” Wallach told the News Service of Florida.
“This is obviously an important question of federal law, as it affects relationships between tribes and state and local governments across the country. It also impacts non-tribal gaming operators since tribal control of statewide remote wagering would dramatically alter the competitive landscape for digital gaming,” he said.
“Therefore, it would make sense for the Supreme Court to address this issue now and bring much needed clarity to the divisive question of whether IGRA’s reach extends to tribal-regulated gaming activities outside of Indian lands, rather than let the issue further devolve into a maze of conflicting and contradictory federal court rulings,” he told the News Service of Florida.
